“By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.” – USCIS LGBT Training Module

Logo of United Nations Refugee Agency.Version made by user Kashmiri. (Photo credit: Wikipedia)

The Matter of Toboso-Alfonso (1990), the applicant, who had the status of being a homosexual, established his membership in a particular social group in Cuba and showed that his freedom was threatened within the meaning of section 243(h)(1) if the INA, on account of his membership in that group. There, the applicant was a 40-year-old Cuban who was paroled to the U.S. in 1980 via the Mariel boat-lift. When his parole terminated, he applied for asylum out of Texas, a state not commonly known for its legal or social acceptance of homosexuality. Importantly, the Court agreed that his freedom or life would be threatened due to such events as frequent detention for days by government officials while being subjected to verbal and physical abusive treatment. Based on these findings, the Court upheld the cancellation of deportation of Toboso-Alfonso.

Refugee camp for Rwandans located in what is now eastern Democratic Republic of the Congo following the Rwandan Genocide. (Photo credit: Wikipedia)

In 2007, the Eleventh Circuit U.S. Court of Appeals, that governing over Florida, affirmed a Venezuelan’s removal despite his petition asylum based on sexual orientation. The Court held that substantial evidence supported the immigration judge’s determination that the alien, and HIV-infected native and citizen of Venezuela, would not be singled out for future persecution based on his sexual orientation or health status if he returned to Venezuela, as required for asylum. The 11th Circuit found that the record indicated that the Venezuelan government had taken affirmative steps toward protecting homosexual individuals and HIV-infected individuals, the Venezuelan Supreme Court ruled that health care for HIV-infected individuals had to be freely available from the government, and the government proposed a constitutional amendment to prohibit discrimination on the basis of sexual orientation, but it ultimately did not pass, and the government banned employers from requiring employees to undergo blood tests prior to employment. Paredes, the applicant, filed his petition seeking relief for his membership in a particular social group. According to the Court, Paredes had not experienced past harm or mistreatment in Venezuela, but feared such if he returned to Venezuela. The failure of Paredes’ application appears to have been his inability to allege actual experience of persecution, even though Paredes at least alleged that he had witnessed two raids on gay bars by the Venezuelan police, and that the Venezuelan police regularly stop, harass, extort, or sexually abuse gay people, and do not enforce the law in favor of homosexuals. Nevertheless, the Court found that Paredes “admits that he had suffered no past persecution in Venezuela.” Based on the Court’s review of country-wide reports, including a 2003 country report that did not mention human rights violations against homosexual individuals, the Court found that Paredes failed to establish eligibility for asylum or withholding of removal. The case set a high standard for proof.

UNHCR Note

Gay Parade 2007, Buenos Aires. (Photo credit: Wikipedia)

The UNHCR (United Nations Commisioner for Refugees) 2008 Note was also issued to provide guidance on legal issues in respect of refugee claims related to sexual orientation and gender identity. The Note discussed that sexual orientation is a fundamental part of human identity, akin to race, religion, nationality, membership of a particular social group and political opinion, and that international and regional jurisprudence and legal doctrine affirm that discrimination on account of a person’s sexual orientation is prohibited. The note also discussed the deleterious effect of laws criminalizing homosexual conduct, persecution and its agents. The Note held that the term “political opinion” should be broadly interpreted to incorporate opinions on sexual orientation and gender identity, and that homosexuals may constitute a particular social group. In conclusion, the Note found that because international and national developments in sexual orientation case law clearly show that LGBT persons may be recognized as a “particular social group,” they are entitled to protection under the 1951 Convention (the UNHCR Treaty).

2009 Neufeld Memo and Matter of Lovo-Lara

Sexuality confusion (Photo credit: Wikipedia)

The 2009 Neufeld Memo is a 6-page discussion to provide guidance on the Matter of Lovo-Lara (2005) in relation to adjudication of visa petitions in which a claimed spouse has undergone sex reassignment surgery. Under Lovo-Lara, USCIS may approve a petition if the petitioner establishes that the surgery resulted in a legal sex change, and that the marriage is recognized as a valid heterosexual marriage.Lovo-Lara was groundbreaking in that previous USCIS policy disallowed recognition of a change of sex for the purpose of spousal immigrant petitions, as discussed by Yates in his 2004 Memo. The 2009 Neufeld Memo stated that the Lovo-Lara principle is binding on the USCIS, no matter where the marriage took place. The Lovo-Lara decision literally rewrote the law, revising AFM Ch. 21.3(a)(2)(j) in its entirety. The Neufeld Memo also pointed out the U.S. states that DO recognize transsexual marriages as valid heterosexual marriages, including: North Carolina, New Jersey, and Maryland. The Neufeld Memo also pointed out that Florida, along with Illinois, Kansas, Ohio, Tennessee, and Texas DO NOT recognize transsexual marriages as valid heterosexual marriage.

The USCIS Training Guide 2011-2012

Based on the above required reading, the USCIS Training Guide went on to provide legal analysis of 1) the Nexus and the Five Protected Grounds for refugees and asylees; 2) persecution and eligibility based on past persecution; 3) well founded fear; 4) interview considerations; and 5) evidence assessment. HINT:The Guidelines Summary, located on pages 46-50, are a necessary reading for anybody attempting to analyze an asylum or refugee application based on sexual orientation. The Guide’s conclusion provided poignant words of advice: “By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.”

The takeaway is that homosexuality as a particular social group providing for international protection is taking hold. The idea has taken root, and the seas are changing. It will be very interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward with the 2008 UN Note, the 2009 Neufeld Memo, and the 2011 USCIS Guidelines.

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Andrew John Bernhard, Esq.

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